BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. F400284 RONALD SADOSKI, Employee CLAIMANT TANKERSLEY FOOD SERVICES, Employer RESPONDENT #1 COMMERCE & INDUSTRY INSURANCE COMPANY, Carrier RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED APRIL 4, 2016 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. Respondent #1 represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. Respondent #2 represented by CHRISTY KING, Attorney, Little Rock, Arkansas; although not participating in hearing. STATEMENT OF THE CASE On March 14, 2016, the above captioned claim came on for a hearing at Fort Smith, Arkansas. A pre-hearing conference was conducted on October 14, 2015, and a prehearing order was filed on that same date. A copy of the pre-hearing order has been marked Commission's Exhibit #1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. An Agreed Order was filed on November 4, 2013. At the pre-hearing conference the parties agreed to litigate the following issue: 1. Claimant s entitlement to medication prescribed by his treating physician. At the time of the hearing the claimant clarified that the medication in question is a compounding cream prescribed by Dr. Torgerson.
2 The claimant contends he is entitled to medication prescribed by his treating physician. Respondent #1 contends that the medication is not reasonable and necessary medical treatment. From a review of the record as a whole, to include medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witness and to observe his demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A. 11-9-704: FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on October 14, 2015, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. 2. Claimant has met his burden of proving by a preponderance of the evidence that the compounding cream prescribed by Dr. Torgerson is reasonable and necessary medical treatment for his compensable injury. FACTUAL BACKGROUND The claimant suffered a compensable injury to his back while working for respondent on November 14, 2003. Medical records indicate that since that injury the claimant has undergone multiple surgical procedures including: a discography at two levels; fusion at L4-S1; spinal cord stimulator placement; hardware removal; wound incision and drainage; implantation of a pain pump; and a fusion at L3-4. As a result of his injury and these surgical procedures, claimant continues to have pain and has been treated by Dr. Torgerson at Pain Management of Tulsa with a diagnosis of chronic pain syndrome; post-lumbar laminectomy syndrome; and disorder of the sacrum
3 with bilateral sacroiliac joint pain. Dr. Torgerson s treatment has included the use of a pain pump and injections. In addition, at the time of claimant s visit on December 16, 2014, Dr. Torgerson prescribed the use of a compound pain cream. Claimant used this compounded cream for a period of time before it was denied by the respondent. Claimant has filed this claim contending that he is entitled to payment of the compounding cream prescribed by Dr. Torgerson. ADJUDICATION Claimant has the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. 230, 184 S.W. 3d 32 (2004). After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that claimant has met his burden of proving by a preponderance of the evidence that the compounding cream prescribed by Dr. Torgerson is reasonable and necessary medical treatment. As previously noted, Dr. Torgerson initially prescribed the compounding cream at the time of claimant s visit on December 16, 2014. Dr. Torgerson s medical report from that date indicates that he and claimant both want to avoid escalating the amount of narcotic pain medication he is taking. Dr. Torgerson noted that claimant had tried other topical agents which were not helpful, but claimant had not tried a compounded pain cream. As a result, Dr. Torgerson prescribed a compounded pain cream and stated that if it helped claimant s pain it would allow claimant s opiate use to be decreased. Claimant testified at the hearing that he used the compounded cream prescribed by Dr. Torgerson for approximately eight months and that the cream provided relief from real bad burning nerve pain. Claimant testified that the use of the compounded cream caused his nerve pain to cease and resulted in him taking less opiate medication. Claimant quit using the cream when it was denied by the respondent. Claimant testified
4 that since he is no longer using the compounding cream his pain level has increased and his opiate medication has been increased. In support of its denial, respondent relies in part upon the opinion of Dr. Roman who performed an evaluation of the claimant on January 14, 2016. With respect to the compounding cream, Dr. Roman stated that compounding creams have not proven to be effective. He also stated that claimant s statements that the compounding cream were providing any pain relief could not be true and that he would be better served through the use of some other prescription. In response to Dr. Roman s treatment, I first note that Dr. Torgerson s medical report of October 22, 2015 indicates that since claimant is no longer using his compounding cream he is having additional pain. As a result, claimant was inquiring about escalating his pain medications but Dr. Torgerson indicated that he would rather continue the compounded pain cream and leave claimant s opiate doses at a lower level. Dr. Torgerson responded to Dr. Roman s opinion in a letter dated March 4, 2016. Specifically, Dr. Torgerson stated: As far as the compounded pain cream, Mr. Sadoski also has felt there is significant relief with this. For Dr. Roman to state that the idea that this compounded cream with those elements in it are giving him any relief could not be true. is an absurd statement. If he has looked through Mr. Sadoski s history and talked to Mr. Sadoski he would clearly see that Mr. Sadoski sees significant relief from some of his pain with the cream. In fact, when the cream was discontinued is when we had to increase Mr. Sadoski s pain medication. He was actually able to decrease his opioid usage because of the compounded pain cream. I would say that is obvious evidence that Mr. Sadoski finds relief from it. I would much rather have a patient on some adjunctive medications with his opioids, such as a compounded cream that they found effective, and be able to lower their pain medications. Mr. Sadoski has tried the lidocaine creams and the Lidoderm patches in the past and has not found them as successful. I find that the opinion of Dr. Torgerson is entitled to greater weight than that of Dr.
5 Roman. Dr. Torgerson has treated the claimant for several years while Dr. Roman evaluated the claimant on only one occasion. Claimant s testimony was that the compounded pain cream decreased his pain and led to a decrease in the dosage of his opioid medication. Claimant s testimony regarding the decrease in the dosage of his opioid medication is confirmed by Dr. Torgerson s medical records. Given this evidence, I find that claimant has met his burden of proof. Accordingly, based upon the claimant s testimony as well as the opinion of Dr. Torgerson which I find to be credible and entitled to great weight, I find that claimant has met his burden of proving by a preponderance of the evidence that the compounding cream prescribed by Dr. Torgerson is reasonable and necessary medical treatment for his compensable injury. Therefore, respondent is liable for payment of that compounding cream. AWARD Claimant has met his burden of proving by a preponderance of the evidence that the compounding cream prescribed by Dr. Torgerson is reasonable and necessary medical treatment. Pursuant to A.C.A. 11-9-715(a)(1)(B)(ii), attorney fees are awarded only on the amount of compensation for indemnity benefits controverted and awarded. Here, no indemnity benefits were controverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. 11-9-715(a)(4). The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $212.15. IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE